Shishupal @ Sohail Khan @ Mantri vs State Of Rajasthan ...
2023 Latest Caselaw 6742 Raj

[2023:RJ-JD:28051]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Suspension Of Sentence Application (Appeal) No.963/2023

In

S.B. Criminal Appeal No.1570/2023

Shishupal @ Sohail Khan @ Mantri S/o Jagdish, Aged About 26 years, R/o Chak-31, M.O., P.s. Muklava Dist. Sri Ganganagar (At Present Lodged In Central Jail Sri Ganganagar)

----Petitioner Versus

1. State Of Rajasthan, Through PP

----Respondent

For Petitioner(s) : Mr. R.S. Charan For Respondent(s) : Mr. Abhishek Purohit, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

02/09/2023

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

15.07.2023 passed by the learned Special Judge, POCSO Act

Cases No.2, Sri Ganganagar in Sessions Case No.163/2021

whereby he was convicted and sentenced to suffer maximum

imprisonment of 10 years under Section 5(L)/6 of the POCSO Act

and lesser punishment for the other offence under Sections 363

and 366 of the IPC.

2. It is contended on behalf of the applicant that the learned

trial Judge has not appreciated the correct, legal and factual

aspects of the matter and thus, reached at an erroneous

conclusion of guilt, therefore, the same is required to be

[2023:RJ-JD:28051] (2 of 4) [SOSA-963/2023

appreciated again by this court being the first appellate Court.

Hearing of the appeal is likely to take long time, therefore, the

application for suspension of sentence may be allowed.

3. Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicant for

releasing the appellant on application for suspension of sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, more particularly after perusal of the statement of P.W. 1

Mst.'K', who is the victim of the case, the submission made at the

instance of the appellant-applicant seems to be worth considerable

that the victim was a consenting party; she joined the association

of the appellant at her own free will and volition without there

being any compulsion as well the fact that she had crossed the

age of discretion since she was around 18 years of age at the

relevant point of time. Besides it, the sanctity of the documents

produced on behalf of the prosecution to establish her age being

18 years is not of impeccable quality as there are submissions in

this regard which are required to be adjudged again. Any

comment on the credibility or the reliability upon the testimony of

P.W.1 Mst.'K' may influence the course of hearing of the appeal

but at the same time, the discrepancies appearing and the

incongruities emanating from the record cannot be over looked.

The appellant-applicant was on bail and neither he has misused

[2023:RJ-JD:28051] (3 of 4) [SOSA-963/2023

the liberty so granted to him nor any complaint has been filed

against him. Rather the prosecution witnesses were able to

depose before the trial Court in free atmosphere without fear or

any duress. The appeal has already been admitted and hearing of

appeal is likely to take further more time, this Court is of the

opinion that it is a fit case for suspending the sentence awarded to

the accused-appellant.

6. Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that the

sentence passed by learned Special Judge, POCSO Act Cases No.2,

Sri Ganganagar who passed the impugned order vide order dated

15.07.2023 in Sessions Case No.163/2021 against the appellant-

applicant- Shishupal @ Sohail Khan @ Mantri S/o Jagdish

shall remain suspended till final disposal of the aforesaid appeal

and he shall be released on bail provided he executes a personal

bond in the sum of Rs. 50,000/-with two sureties of RS.25,000/-

each to the satisfaction of the learned trial Judge for his

appearance in this Court on 09.10.2023 and whenever ordered to

do so till the disposal of the appeal on the conditions indicated

below:

(1) That he will appear before the trial Court in the month of January of every year till the appeal is decided. (2) That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court. (3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

[2023:RJ-JD:28051] (4 of 4) [SOSA-963/2023

7. The learned trial Court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused

applicant was tried and convicted. A copy of this order shall also

be placed in that file for ready reference. Criminal Misc. file shall

not be taken into account for statistical purpose relating to

pendency and disposal of cases in the trial court. In case the said

accused applicant does not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

(FARJAND ALI),J 176-Mamta/-

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